SECOND DIVISION From the records of the case, it appears that on June 19, 1994,
the National Bureau of Investigation (NBI) filed with the
G.R. No. 121234 August 23, 1995
HUBERT J. P. WEBB, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the
Regional Trial Court of Parañaque, Branch 258, HONORABLE
ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial
Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES,
ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR.,
ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF
INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the
Presiding Judge of the Regional Trial Court of Parañaque,
Branch 274, respondents, LAURO VIZCONDE, intervenor.
G.R. No. 121245 August 23, 1995
MICHAEL A. GATCHALIAN, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the
Regional Trial Court of Parañaque, Branch 258, HONORABLE
ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial
Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES,
ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN,
and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE
AMELITA G. TOLENTINO, the Presiding Judge of the Regional
Trial Court of Parañaque, Branch 274, respondents.
G.R. No. 121297 August 23, 1995
ANTONIO L. LEJANO, petitioner,
vs.
HONORABLE RAUL E. DE LEON, the Presiding Judge of the
Regional Trial Court of Parañaque, Branch 258, HONORABLE
ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial
Court of Parañaque, Branch 259, PEOPLE OF THE PHILIPPINES,
ZENON L. DE GUIA, JOVENCITO ZUÑO, LEONARDO GUIYAB, JR.,
ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF
INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the
Presiding Judge of the Regional Trial Court of Parañaque,
Branch 274, respondents.
PUNO, J.:
Before the Court are petitions for the issuance of the
extraordinary writs of certiorari, prohibition and mandamus with
application for temporary restraining order and preliminary
injunction to: (1) annul and set aside the Warrants of Arrest
issued against petitioners by respondent Judges Raul E. de Leon
and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the
respondents from conducting any proceeding in the
aforementioned criminal case; and (3) dismiss said criminal case
or include Jessica Alfaro as one of the accused therein.1
Department of Justice a letter-complaint charging petitioners
Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6)
other persons,2 with the crime of Rape with Homicide.
Forthwith, the Department of Justice formed a panel of
prosecutors headed by Assistant Chief State Prosecutor Jovencio
R. Zuño to conduct the preliminary investigation3 of those
charged with the rape and killing on June 30, 1991 of Carmela N.
Vizconde;4 her mother Estrellita Nicolas-Vizconde,5 and her sister
Anne Marie Jennifer6 in their home at Number 80 W. Vinzons,
St., BF Homes, Parañaque, Metro Manila.
During the preliminary investigation, the NBI presented the
following: (1) the sworn statement dated May 22, 1995 of their
principal witness, Maria Jessica M. Alfaro who allegedly saw the
commission of the crime;7 (2) the sworn statements of two (2) of
the former housemaids of the Webb family in the persons
of Nerissa E. Rosales and Mila S.Gaviola;8 (3) the sworn-
statement of Carlos J. Cristobal who alleged that on March 9,
1991 he was a passenger of United Airlines Flight No. 808 bound
for New York and who expressed doubt on whether petitioner
Webb was his co-passenger in the trip; (4) the sworn statement
of Lolita Birrer, a former live-in partner of Gerardo Biong, who
narrated the manner of how Biong investigated and tried to
cover up the crime at bar;9 (5) the sworn statements of Belen
Dometita and Teofilo Minoza, two of the Vizconde maids, and
the sworn statements of Normal White, a security guard
and Manciano Gatmaitan, an engineer. The autopsy reports of
the victims were also submitted and they showed that Carmela
had nine (9) stab wounds, Estrellita twelve (12) and Jennifer
nineteen (19).10 The genital examination of Carmela confirmed
the presence of spermatozoa.11
Before submitting his counter-affidavit, petitioner Webb filed
with the DOJ Panel a Motion for Production And Examination of
Evidence and Documents for the NBI to produce the following:
(a) Certification issued by the U.S. Federal Bureau of
Investigation on the admission to and stay of Hubert
Webb in the United States from March 9, 1991 to
October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal
Officer, Dr. Prospero A. Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than
his Sworn Statement dated October 7, 1991);
(d) Photographs of fingerprints lifted from the Vizconde
residence taken during the investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas,
et al.;
(f) List of names of 135 suspects/persons investigated
by the NBI per Progress Report dated September 2,
1991 submitted by Atty. Arlis Vela, Supervising Agent;
 (g) Records of arrest, interview, investigation and other
written statements of Jessica Alfaro (other than the
May 22, 1995 Sworn Statement) conducted by the NBI
and other police agencies;
(h) transmittal letter to the NBI, including the report of
the investigation conducted by Superintendent Rodolfo
C. Sison, Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the
Task Force Jecares, including their respective positions
and duties;
(j) Statements made by other persons in connection
with the crime charged.
The motion was granted by the DOJ Panel and the NBI submitted
photocopies of the documents. It alleged it lost the original of
the April 28, 1995 sworn statement of Alfaro. This compelled
petitioner Webb to file Civil Case No. 951099 in the Regional
Trial Court (RTC) of Makati, Br. 63, for the purpose, among
others, of obtaining the original of said sworn statement. He
succeeded, for in the course of its proceedings, Atty. Arturo L.
Mercader, Jr., produced a copy of said original in compliance
with a subpoena duces tecum. The original was then submitted
by petitioner Webb to the DOJ Panel together with his other
evidence. It appears, however, that petitioner Webb failed to
obtain from the NBI the copy of the Federal Bureau of
Investigation (FBI) Report despite his request for its production.
Petitioner Webb claimed during the preliminary investigation
that he did not commit the crime at bar as he went to the United
States on March 1, 1991 and returned to the Philippines on
October 27, 1992. 12 His alibi was corroborated by Honesto
Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia
Rodriguez, Edgardo Venture and Pamela Francisco.13 To further
support his defense, he submitted documentary evidence that
he bought a bicycle and a 1986 Toyota car while in the United
States on said dates14 and that he was issued by the State of
California Driver's License No. A8818707 on June 14,
1991.15 Petitioner Webb likewise submitted the letter dated July
25, 1995 of Mr. Robert Heafner, Legal Attache of the US
Embassy, citing certain records tending to confirm, among
others, his arrival at San Francisco, California on March 9, 1991
as a passenger in United Airlines Flight No. 808.
The other respondents — Hospicio "Pyke" Fernandez, Michael
Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel
Rodriguez and Gerardo Biong — submitted sworn statements,
responses, and a motion to dismiss denying their complicity in
the rape-killing of the Vizcondes.16 Only the respondents Joey
Filart and Artemio "Dong" Ventura failed to file their counter-
affidavits though they were served with subpoena in their last
known address.17 In his sworn statement,
petitioner Gatchalian alleged that from 11 o'clock in the evening
of June 29, 1991 until 3 o'clock in the morning of the following
day, he was at the residence of his friends, Carlos and Andrew
Syyap, at New Alabang Village, Muntinlupa watching video tapes.
He claimed that his co-petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution
"finding probable cause to hold respondents for trial" and
recommending that an Information for rape with homicide be
filed against petitioners and their co-respondents,18 On the same
date, it filed the corresponding Information19 against petitioners
and their co-accused with the Regional Trial Court of Parañaque.
The case was docketed as Criminal Case No. 95-404 and raffled
to Branch 258 presided by respondent judge Zosimo V. Escano. It
was, however, the respondent judge Raul de Leon, pairing judge
of Judge Escano, who issued the warrants of arrest against the
petitioners. On August 11, 1995, Judge Escano voluntarily
inhibited himself from the case to avoid any suspicion about his
impartiality considering his employment with the NBI before his
appointment to the bench. The case was re-raffled to Branch
274, presided by Judge Amelita Tolentino who issued new
warrants of arrest against the petitioners and their co-accused.
On August 11, 1995, petitioner Webb voluntarily surrendered to
the police authorities at Camp Ricardo Papa Sr., in Bicutan,
Taguig. Petitioners Gatchalian and Lejano likewise gave
themselves up to the authorities after filing their petitions
before us.
In their petitions at bar, petitioners contend: (1) respondent
Judges de Leon and Tolentino gravely abused their discretion
when they failed to conduct a preliminary examination before
issuing warrants of arrest against them: (2) the DOJ Panel
likewise gravely abused its discretion in holding that there is
probable cause to charge them with the crime of rape with
homicide; (3) the DOJ Panel denied them their constitutional
right to due process during their preliminary investigation; and
(4) the DOJ Panel unlawfully intruded into judicial prerogative
when it failed to charge Jessica Alfaro in the Information as an
accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable
cause. They insist that the May 22, 1995 sworn statement of
Jessica Alfaro is inherently weak and uncorroborated. They
hammer on alleged material inconsistencies between her
April 28, 1995 and May 22, 1995 sworn statements. They
assail her credibility for her misdescription of petitioner
Webb's hair as semi-blonde. They also criticize the
procedure followed by the DOJ Panel when it did not
examine witnesses to clarify the alleged incredulities and
inconsistencies in the sworn statements of the witnesses for
the NBI.
We start with a restatement of the purpose of a preliminary
investigation. Section 1 of Rule 112 provides that a
preliminary investigation should determine " . . . whether
there is a sufficient ground to engender a well-grounded
belief that a crime cognizable by the Regional Trial Court has
been committed and that the respondent is probably guilty
thereof, and should be held for trial." Section 3 of the same
Rule outlines the procedure in conducting a preliminary
investigation, thus:
Sec. 3. Procedure. — Except as provided for in Section 7
hereof, no complaint or information for an offense
cognizable by the Regional Trial Court shall be filed without
a preliminary investigation having been first conducted in
the following manner:
(a) The complaint shall state the known address of the
respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting
documents, in such number of copies as there are
respondents, plus two (2) copies for the official file. The said
affidavits shall be sworn to before any fiscal, state
prosecutor or government official authorized to administer
oath, or, in their absence or unavailability, a notary public,
who must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss the same if he finds
no ground to continue with the inquiry, or issue a subpoena
to the respondent, attaching thereto a copy of the
complaint, affidavits and other supporting documents.
Within ten (10) days from receipt thereof, the respondent
shall submit counter-affidavits and other supporting
documents. He shall have the right to examine all other
evidence submitted by the complainant.
(c) Such counter-affidavits and other supporting evidence
submitted by the respondent shall also be sworn to and
certified as prescribed in paragraph (a) hereof and copies
thereof shall be furnished by him to the complainant.
(d) If the respondent cannot be subpoenaed, or if
subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall base his
resolution on the evidence presented by the complainant.
(e) If the investigating officer believes that there are matters
to be clarified, he may set a hearing to propound
clarificatory questions to the parties or their witnesses,
during which the parties shall be afforded an opportunity to
be present but without the right to examine or cross-
examine. If the parties so desire, they may submit questions
to the investigating officer which the latter may propound
to the parties or witnesses concerned.
(f) Thereafter, the investigation shall be deemed
concluded, and the investigating officer shall resolve
the case within ten (10) days therefrom. Upon the
evidence thus adduced, the investigating officer shall
determine whether or not there is sufficient ground to
hold the respondent for trial.
Section 4 of Rule 112 then directs that "if the investigating
fiscal finds cause to hold the respondent for trial, he shall
prepare the resolution and corresponding information. He
shall certify under oath that he, or as shown by the record,
an authorized officer, has personally examined the
complainant and his witnesses, that there is reasonable
ground to believe that a crime has been committed and that
the accused is probably guilty thereof . . ."
The need to find probable cause is dictated by the Bill of Rights
which protects "the right of the people to be secure in their
persons . . . against unreasonable searches and seizures of
whatever nature . . ."20 An arrest without a probable cause is an
unreasonable seizure of a person, and violates the privacy of
persons which ought not to be intruded by the State. 21 Probable
cause to warrant arrest is not an opaque concept in our
jurisdiction. Continuing accretions of case law reiterate that they
are facts and circumstances which would lead a reasonably
discreet and prudent man to believe that an offense has been
committed by the person sought to be arrested.22 Other
jurisdictions utilize the term man of reasonable caution 23 or the
term ordinarily prudent and cautious man.24 The terms are
legally synonymous and their reference is not to a person with
training in the law such as a prosecutor or a judge but to
the average man on the street.25 It ought to be emphasized that
in determining probable cause, the average man weighs facts
and circumstances without resorting to the calibrations of our
technical rules of evidence of which his knowledge is nil. Rather,
he relies on the calculus of common sense of which all
reasonable men have an abundance.
Applying these basic norms, we are not prepared to rule
that the DOJ Panel gravely abused its discretion when it
found probable cause against the petitioners. Petitioners
belittle the truthfulness of Alfaro on two (2) grounds: (a) she
allegedly erroneously described petitioner Webb's hair as
semi-blond and (b) she committed material inconsistencies
in her two (2) sworn statement, thus:26
xxx xxx xxx
To illustrate, the following are some examples of
inconsistencies in the two sworn statements of Alfaro:
On whether Alfaro knew Carmela before the incident in
question
First Affidavit: She had NOT met Carmela before June
29, 1991.
Second Affidavit: "I met her in a party sometime in
February, 1991."
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons
on that night. She just said "on the following day I read
in the newspaper that there were three persons who
were killed . . ."
Second Affidavit: "I peeped through the first door on
the left. I saw two bodies on top of the bed, bloodied,
and in the floor, I saw Hubert on top of Carmela."
On the alleged rape of Carmela Vizconde
 First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb "with bare
buttocks, on top of Carmela and pumping, her mouth
gagged and she was moaning and I saw tears on her
eyes."
On how Webb, Lejano, and Ventura entered the Vizconde
house
First Affidavit: "by jumping over the fence, which was
only a little more than a meter high."
Second Affidavit: They "entered the gate which was
already open."
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: "I proceeded to the iron grill gate
leading to the dirty kitchen."
In its Resolution, the DOJ Panel ruled that these alleged
misdescription and inconsistencies did not erode the
credibility of Alfaro. We quote the pertinent
ruling, viz.:27
xxx xxx xxx
As regards the admissibility of Alfaro's statements,
granting for purposes of argument merely that she is a
co-conspirator, it is well to note that confessions of a
co-conspirator may be taken as evidence to show the
probability of the co-conspirator's participation in the
commission of the crime (see People vs. Lumahang, 94
Phil. 1084).
Furthermore, it is a well-established doctrine that
conspiracy need not be proved by direct evidence of
prior agreement to commit the crime. Indeed, "only
rarely would such a prior agreement be demonstrable
since, in the nature of things, criminal undertakings are
only rarely documented by agreements in writing. Thus,
conspiracy may be inferred from the conduct of the
accused before, during and after the commission of the
crime, showing that the several accused had acted in
concert or in unison with each other, evincing a
common purpose or design." (Angelo vs. Court of
Appeals, 210 SCRA 402 [1992], citations omitted;
People vs. Molleda, 86 SCRA 699).
Neither can we discredit Alfaro merely because of the
inconsistencies in her two sworn statements.
We note that the May 22, 1995 sworn statement of Alfaro was
In Angelo, the Court refused to discredit the testimony
given with the assistance of counsel28 and consists of six (6)
of a witness accusing therein petitioner for the slaying
pages, in single space reciting in rich details how the crime was
of one Gaviano Samaniego even though said witness
planned and then executed by the petitioners. In addition, the
failed to name Angelo in his affidavit which was
DOJ Panel evaluated the supporting sworn statements of Nerissa
executed five (5) months earlier. Granting, the Court
Rosales and Mila Gaviola, former housemaids of the Webbs,
continued, that a part of the witness' testimony is
untrue, such circumstance is not sufficient to discredit
the entire testimony of the witness.
On August 7, 1995, another counsel for respondent
Webb submitted his memorandum suggesting that the
instant complaint "should not be decided within the
month to give time to the NBI to coordinate with the
FBI on the latter's inquiry into the whereabouts of
Hubert Webb . . . and to check on our U.S.-based
witnesses."
In said memorandum, counsel for respondent Webb
calls for the application of the maxim falsus in uno,
falsus in omnibus arising from the inconsistencies of
Alfaro's statements, among others. This is untenable.
As held in Angelo:
There is no rule of law which prohibits a court from
crediting part of the testimony of a witness as
worthy of belief and from simultaneously rejecting
other parts which the court may find incredible or
dubious. The maxim falsus in uno, falsus in
omnibus is not a rule of law, let alone a general
rule of law which is universally applicable. It is not
a legal presumption either. It is merely a latinism
describing the conclusion reached by a court in a
particular case after ascribing to the evidence such
weight or lack of weight that the court deemed
proper.
In the case before us, complainant reasoned out that
Alfaro was then having reservations when she first
executed the first statement and held back vital
information due to her natural reaction of mistrust.
This being so, the panel believes that the
inconsistencies in Alfaro's two sworn statements have
been sufficiently explained especially specially so where
there is no showing that the inconsistencies were
deliberately made to distort the truth. Consequently,
the probative value of Alfaro's testimony deserves full
faith and credit. As it has been often noted, ex
parte statements are generally incomplete because
they are usually executed when the affiant's state of
mind does not give her sufficient and fair opportunity
to comprehend the import of her statement and to
narrate in full the incidents which transpired (People vs.
Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of
Appeals, supra). In the case at bar, there is no dispute
that a crime has been committed and what is clear
before us is that the totality of the evidence submitted
by the complainant indicate a prima facie case that
respondents conspired in the perpetration of the
imputed offense.
Carlos J. Cristobal, a passenger in United Airlines Flight No. 808
and Lolita Birrer, a paramour of Gerardo Biong. The Panel
assayed their statements as follows:29
xxx xxx xxx
According to Nerissa E. Rosales, a former housemaid of
the Webb family, on June 29, 1991, between 7:00
o'clock and 8:00 o'clock in the evening, Hubert was at
home inside his room with two male visitors. She knew
it because she and her co-housemaid, Loany, were
instructed by Hubert to bring them three glasses of
juice. It was the last time she saw Hubert and was later
told by then Congressman Webb that Hubert was in the
United States.
While Mila S. Gaviola, another former housemaid of the
Webb family and who served as a laundry woman,
claims, aside from corroborating the statement of
Nerissa Rosales, that on June 30, 1991, she woke up at
around 4:00 in the morning and as what she used to do,
she entered the rooms of the Webbs to get their
clothes to be washed. As a matter of fact, in that early
morning, she entered Hubert's room and saw Hubert,
who was only wearing his pants, already awake and
smoking while he was sitting on his bed. She picked up
Hubert's scattered clothes and brought them together
with the clothes of the other members of the family to
the laundry area. After taking her breakfast, she began
washing the clothes of the Webbs. As she was washing
the clothes of Hubert Webb, she noticed fresh
bloodstains in his shirt. After she finished the laundry,
she went to the servant's quarters. But feeling uneasy,
she decided to go up to the stockroom near Hubert's
room to see what he was doing. In the said stockroom,
there is a small door going to Hubert's room and in that
door there is a small opening where she used to see
Hubert and his friends sniffing on something. She
observed Hubert was quite irritated, uneasy, and
walked to and from inside his room.
On that day, she noticed Hubert left the house at
around 1:00 in the afternoon and came back at around
4:00 in the same afternoon and went inside his room
using the secret door of the house. It was the last time
that she saw Hubert until she left the Webb family.
On the other hand, Carlos J. Cristobal alleged that on
March 9, 1991, at about 10:00 in the morning, he was
at the Ninoy Aquino International Airport as he was
then scheduled to take the United Airlines Flight No.
808 at 2:00 in the afternoon for New York. At the
airport's lobby, he saw then Congressman Freddie
Webb with a male companion. He greeted him and
Webb answered: "Mabuti naman, at ito, ihahatid ko
ang anak ko papuntang Florida." He knew Freddie
Webb because he often watched him then in a
television show "Chicks to Chicks." He observed that
the man whom Freddie Webb referred to as his son,
was of the same height as Freddie. The son referred to
has fair complexion with no distinguishing marks on his
face. He (son of Webb) was then wearing a striped
white jacket. When he and his children were already
inside the plane, he did not see Freddie anymore, but
he noticed his son was seated at the front portion of
the economy class. He never noticed Freddie Webb's
son upon their arrival in San Francisco. He claims that,
while watching the television program "DONG PUNO
LIVE" lately, he saw the wife of Freddie Webb with her
lawyer being interviewed, and when she described
Hubert as "moreno" and small built, with a height of
five feet and seven inches tall, and who was the one
who left for United States on March 9, 1991, he
nurtured doubts because such description does not fit
the physical traits of the son of Freddie, who left with
him for United States on the same flight and date.
Lolita Birrer, alleged that she know Gerardo Biong
because she had an affair with him for almost three (3)
years and in fact, she had a child with him who is now
four (4) years old. Their relationship started in
February, 1991 until she broke up with him in
September 1993. She recalls that on June 29, 1991, at
around 6:00 p.m., Biong invited her to play mahjong at
the canteen of a certain Aling Glo located at the back of
the Parañaque Municipal Hall.
At about 2:30, in the early morning of January 30, 1991,
the radio operator of the Parañaque police told Biong
that he has a phone call. Before Biong went to the radio
room, she was instructed to take him over and after
somebody won the game, she followed Biong at the
radio room where she overheard him uttering,
"Ano?, Saan? Mahirap yan, Paano, o sige, aantayin
kita, O ano?, dilaw na taxi, o sige." When he put the
phone down, Biong told her, "Mayroon lang akong
rerespondehan, ikaw muna ang maupo" and then, he
went outside the canteen apparently waiting for
somebody. Twenty minutes later, a taxi, colored yellow,
arrived with a male passenger sitting at the backseat
and parked near the canteen. After it made some
signals by blinking its headlight, Biong rode thereat at
the front seat beside the driver and then, they left. She
was not able to recognize the male passenger because
the window of the taxi was tinted. Biong came back at
around 7:00 of the same morning and when he arrived,
he immediately washed his hands and face, and took
his handkerchief from his pocket which he threw at the
trash can. She asked him why he threw his
handkerchief and he answered, "Hmp . . . amoy tae."
She inquired what happened in BF Homes and he
replied, "Putang inang mga batang iyon, pinahirapan
nila ako."
Biong later invited her for breakfast, but they first went
to his office where she observed him doing something
in his steel cabinet while he appeared to be uneasy.
Moments later, Galvan, another policeman of
Parañaque, arrived and said, "Oy Biong, may tatlong
patay sa BF, imbestigahan mo" to which Biong
answered, "Oo susunod na ako." Biong went to the
office of Capt. Don Bartolome who offered to
accompany him and with whom she asked permission
to go with them. Before they proceeded to the place
where the killings happened, she asked Biong if he
knew the exact address and the latter immediately
responded, "Alam ko na yon." She was surprised
because Galvan never told him the place of the
incident.
As soon as they arrived at the Vizconde's residence,
Biong instructed the housemaids to contact the victim's
relatives, while the security guard fetched the barangay
chairman and the president of the Homeowners
Association. When all these persons were already in the
house, Biong started recording the wounds of the
victim. Inside the master's bedroom, she saw Biong
took a watch from the jewelry box. Because she could
not tolerate the foul odor, she and Capt. Bartolome
went out of the room and proceeded to the dining
area. On top of the dining table, she saw the scattered
contents of a shoulder bag. Moments later, Biong came
out from the room and proceeded to the front door to
remove the chain lock; asked the keys from the
housemaid and it was only then that the main door was
opened. Biong noticed a stone in front of the broken
glass of the door and requested Capt. Bartolome to go
inside the servant's quarters as he doubted the
housemaids' claim that they heard nothing unusual.
Using the handle of his gun, Biong broke the remaining
glass of the door panel. Bartolome then came out of
the room and told Biong that he can hear the sound of
the glass being broken. At the garage, Biong also
noticed same marks on the hood of the car.
On the following day, at around 12:00 noon, Biong
arrived in her house together with the Vizconde
housemaids. When Biong was preparing to take a bath,
she saw him remove from his pocket the things she also
saw from Vizconde's residence, to wit: calling cards,
driver's license, ATM card, a crossed check worth
P80,000.00, earrings, a ring, bracelet, necklace, and the
watch he took from the jewelry box inside the room of
the Vizcondes. These jewelry items were later pawned
by Biong for P20,000.00 at a pawnshop in front of
Chow-Chow restaurant in Santos Avenue, Parañaque.
The next day, she saw Biong took from his locker at the
Parañaque Police Station an imported brown leather
jacket, which the latter claimed to have been given to
him by the person who called him up in the early
morning of June 30, 1991.
Since then, Biong has been wearing said jacket until
they broke up sometime in 1993. She observed that
Biong seemed not interested in pursuing the
investigation of the Vizconde case. In fact, when Biong
and this group picked up Mike Gatchalian and brought
him to the Parañaque Police Station, she was surprised
that Biong halted the investigation when Gatchalian
was profusely sweating while being interrogated. After
the father of Gatchalian talked to Colonel Pureza, the
latter called up and instructed Biong to bring Gatchalian
to him (Colonel Pureza) and that was the last thing she
remembered regarding this case.
The DOJ Panel then weighed these inculpatory evidence against
the exculpatory evidence of petitioners. It ruled: 30
xxx xxx xxx
The voluminous number of exhibits submitted by
respondent Webb to support his defense of denial and
alibi notwithstanding, the panel, after a careful and
thorough evaluation of the records, believes that they
cannot outweigh the evidence submitted by the
complainant. Alibi cannot prevail over the positive
identification made by a prosecution witness. Verily,
alibi deserves scant consideration in the face of positive
identification especially so where the claim of alibi is
supported mainly by friends and relatives (People vs.
Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181
SCRA 316 and a long line of cases).
Similarly, denial is a self-serving negative which cannot
be given greater evidentiary weight than the
declaration of a credible witness who testified on
affirmative matters (People vs. Carizo, 233 SCRA 687
[1994]). Indeed, denial, like alibi, is weak and becomes
even more weaker when arrayed against the positive
identification by the witness for the prosecution
(People vs. Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalian's defense of alibi was not
corroborated by Lejano, whom he claimed was with
him watching video tapes at the Syyap residence. Other
than claiming that he "was not and could not have been
at or near the area of the Vizconde residence at the
time of the alleged commission of the crime,"
respondent Lejano proffered no evidence to
substantiate his claim of alibi.
xxx xxx xxx
On the other hand, respondent Webb seeks to enhance
the acceptability of his alibi in the form of documents
tending to show that he was thousands of miles away
when the incident occurred. We have carefully
deliberated and argued on the evidence submitted by
respondent Webb in support of his absence from the
country since March 9, 1991 to October 26, 1992 and
found the same wanting to exonerate him of the
offense charged. The material dates in this case are
June 29 and 30, 1991. While respondent Webb may
have submitted proof tending to show that he was
issued a California driver's license on June 14, 1991,
there is no showing that he could not have been in the
country on the dates above mentioned. Neither do we
find merit in the allegation that respondent Webb
personally bought a bicycle on June 30, 1991 in
California in view of his positive identification by Alfaro
and the two (2) househelps of the Webb family who
testified that he was here in the country on said dates.
 Additionally, the issuance of receipt evidencing the
purchase of a bicycle in California is no conclusive proof
that the name appearing thereon was the actual buyer
of the merchandise.
Given these conflicting pieces of evidence of the NBI and the
petitioners, we hold that the DOJ Panel did not gravely abuse its
discretion when it found probable cause against the petitioners.
A finding of probable cause needs only to rest on evidence
showing that more likely than not a crime has been committed
and was committed by the suspects. Probable cause need not be
based on clear and convincing evidence of guilt, neither on
evidence establishing guilt beyond reasonable doubt and
definitely, not on evidence establishing absolute certainty of
guilt. As well put in Brinegar v. United States,31 while probable
cause demands more than "bare suspicion," it requires "less than
evidence which would justify . . . conviction." A finding of
probable cause merely binds over the suspect to stand trial. It is
not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to
support a finding of probable cause, we also hold that the DOJ
Panel did not, gravely abuse its discretion in refusing to call the
NBI witnesses for clarificatory questions. The decision to call
witnesses for clarificatory questions is addressed to the sound
discretion of the investigator and the investigator alone. If the
evidence on hand already yields a probable cause, the
investigator need not hold a clarificatory hearing. To repeat,
probable cause merely implies probability of guilt and should be
determined in a summary manner. Preliminary investigation is
not a part of trial and it is only in a trial where an accused can
demand the full exercise of his rights, such as the right to
confront and cross-examine his accusers to establish his
innocence. In the case at bar, the DOJ Panel correctly adjudged
that enough evidence had been adduced to establish probable
cause and clarificatory hearing was unnecessary.
II
We now come to the charge of petitioners that respondent
Judge Raul de Leon and, later, respondent Judge Amelita
Tolentino issued warrants of arrest against them without
conducting the required preliminary examination.
Petitioners support their stance by highlighting the
following facts: (1) the issuance of warrants of arrest in a
matter of few hours; (2) the failure of said judges to issue
orders of arrest; (3) the records submitted to the trial court
were incomplete and insufficient from which to base a
finding of probable cause; and (4) that even Gerardo Biong
who was included in the Information as a mere accessory
had a "NO BAIL" recommendation by the DOJ Panel.
Petitioners postulate that it was impossible to conduct a
"searching examination of witnesses and evaluation of the
documents" on the part of said judges.
The issuance of a warrant of arrest interferes with individual
liberty and is regulated by no less than the fundamental law
of the land. Section 2 of Article III of the Constitution
provides:
Sec. 2. The right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches
and seizures of whatever nature and for any purpose shall
be inviolable, and no search warrant or warrant of arrest
shall issue except upon probable cause to be determined
personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may
produce and particularly describing the place to be searched
and the persons or things to be seized.
The aforequoted provision deals with the requirements of
probable cause both with respect to issuance of warrants of
arrest or search warrants. The similarities and differences of
their requirements ought to be educational. Some of them are
pointed out by Professors LaFave and Israel, thus:32 "It is
generally assumed that the same quantum of evidence is
required whether one is concerned with probable cause to arrest
or probable cause to search. But each requires a showing of
probabilities as to somewhat different facts and circumstances,
and thus one can exist without the other. In search cases, two
conclusions must be supported by substantial evidence: that the
items sought are in fact seizable by virtue of being connected
with criminal activity, and that the items will be found in the
place to be searched. It is not also necessary that a particular
person be implicated. By comparison, in arrest cases there must
be probable cause that a crime has been committed and that the
person to be arrested committed it, which of course can exist
without any showing that evidence of the crime will be found at
premises under that person's control." Worthy to note, our Rules
of Court do not provide for a similar procedure to be followed in
the issuance of warrants of arrest and search warrants. With
respect to warrants of arrest, section 6 of Rule 112 simply
provides that "upon filing of an information, the Regional Trial
Court may issue a warrant for the arrest of the accused." In
contrast, the procedure to be followed in issuing search warrants
is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide:
xxx xxx xxx
Sec. 3. Requisites for issuing search warrant. — A
search warrant shall not issue but upon probable cause
in connection with one specific offense to be
determined personally by the judge after examination
under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing
the place to be searched and the things to be seized.
Sec. 4. Examination of complainant; record. — The
judge must, before issuing the warrant, personally
examine in the form of searching questions and
answers, in writing and under oath the complainant
and any witnesses he may produce on facts personally
known to them and attach to the record their sworn
statements together with any affidavits submitted.
Sec. 5. Issuance and form of search warrant. — If the
judge is thereupon satisfied of the facts upon which the
application is based, or that there is probable cause to
believe that they exist, he must issue the warrant,
which must be substantially in the form prescribed by
these Rules.
 We discussed the difference in the Procedure of issuing
warrants of arrest and search warrants in Soliven
vs. Makasiar,33 thus:
xxx xxx xxx
The second issue, raised by Beltran, calls for an
interpretation of the constitutional provision on the
issuance of warrants of arrest. The pertinent provision
reads:
Art. III, Sec. 2. The right of the people to be secure in
their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature
and for any purpose shall be inviolable, and no search
warrant or warrant of arrest shall issue except upon
probable cause to be determined personally by the
judge after examination under oath or affirmation of
the complainant and the witnesses he may produce,
and particularly describing the place to be searched and
the persons or things to be seized.
The addition of the word "personally" after the word
"determined" and the deletion of the grant of authority by
the 1973 Constitution to issue warrants to "other
responsible officers as may be authorized by law," has
apparently convinced petitioner Beltran that the
Constitution now requires the judge to personally examine
the complainant and his witnesses in his determination of
probable cause for the issuance of warrants of arrest. This is
not an accurate interpretation.
What the Constitution underscores is the exclusive and
personal responsibility of the issuing judge to satisfy himself
of the existence of probable cause. In satisfying himself of
the existence of probable cause for the issuance of a warrant
of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established
doctrine and procedure, he shall: (1) personally evaluate the
report and the documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof,
issue a warrant; or (2) if on the basis thereof he finds no
probable cause, he may disregard the fiscal's report and
require the submission of supporting affidavits of witnesses
to aid him in arriving at a conclusions as to the existence of
probable cause.
Sound policy dictates this procedure, otherwise judges
would be unduly laden with the preliminary examination
and investigation of criminal complaints instead of
concentrating on hearing and deciding cases filed before
their courts.
Clearly then, the Constitution, the Rules of Court, and our case
law34 repudiate the submission of petitioners that respondent
judges should have conducted "searching examination of
witnesses" before issuing warrants of arrest against them. They
also reject petitioners' contention that a judge must first issue an
order of arrest before issuing a warrant of arrest. There is no law
or rule requiring the issuance of an Order of Arrest prior to a
warrant of arrest.
In the case at bar, the DOJ Panel submitted to the trial court its
26-page report, the two (2) sworn statements of Alfaro and the
sworn statements of Carlos Cristobal and Lolita Birrer35 as well as
the counter-affidavits of the petitioners. Apparently, the
painstaking recital and analysis of the parties' evidence made in
the DOJ Panel Report satisfied both judges that there is probable
cause to issue warrants of arrest against petitioners. Again, we
stress that before issuing warrants of arrest, judges merely
determine personally the probability, not the certainty of guilt of
an accused. In doing so, judges do not conduct a de novo hearing
to determine the existence of probable cause. They
just personally review the initial determination of the prosecutor
finding a probable cause to see if it is supported by substantial
evidence. The sufficiency of the review process cannot be
measured by merely counting minutes and hours. The fact that it
took the respondent judges a few hours to review and affirm the
probable cause determination of the DOJ Panel does not mean
they made no personal evaluation of the evidence attached to
the records of the case.36
Petitioners' reliance on the case of Allado vs. Diokno37 is
misplaced. Our Allado ruling is predicated on the utter failure of
the evidence to show the existence of probable cause. Not even
the corpus delicti of the crime was established by the evidence of
the prosecution in that case. Given the clear insufficiency of the
evidence on record, we stressed the necessity for the trial judge
to make a further personal examination of the complainant and
his witnesses to reach a correct assessment of the existence or
non-existence of probable cause before issuing warrants of
arrest against the accused. The case at bar, however, rests on a
different factual setting. As priorly discussed, the various types
of evidence extant in the records of the case provide substantial
basis for a finding of probable cause against the petitioner.
The corpus delicti of the crime is a given fact. There is an
eyewitness account of the imputed crime given by Alfaro. The
alibi defense of petitioner Webb is also disputed by sworn
statements of their former maids. It was therefore unnecessary
for the respondent judges to take the further step of
examining ex parte the complainant and their witnesses with
searching questions.
III
Petitioners also complain about the denial of their constitutional
right to due process and violation of their right to an impartial
investigation. They decry their alleged hasty and malicious
prosecution by the NBI and the DOJ Panel. They also assail the
prejudicial publicity that attended their preliminary
investigation.
We reject these contentions. The records will show that the DOJ
Panel did not conduct the preliminary investigation with
indecent haste. Petitioners were given fair opportunity to prove
lack of probable cause against them. The fairness of this
opportunity is well stressed in the Consolidated Comment of the
Solicitor General, viz.:
Again, there is no merit in this contention. Petitioners
were afforded all the opportunities to be heard.
Petitioner Webb actively participated in the preliminary
investigation by appearing in the initial hearing held on
June 30, 1995 and in the second hearing on July 14,
1995; and by filing a "Motion for Production and
Examination of Evidence and Documents" on June 27,
1995 (p. 4, Petition), a "Reply to the compliance and
Comment/Manifestation to the Motion for Production
and Examination of Evidence" on July 5, 1995 (p. 6,
Petition), a "Comment and Manifestation" on July 7,
1995 (p. 6, Petition), his "Counter-Affidavit" on July 14,
1995 (pp. 6-7, Petition) and a "Motion to Resolve" on
August 1, 1995. Numerous letter-requests were also
sent by the petitioner Webb's counsel to the DOJ Panel
requesting the latter to furnish him a copy of the
reports prepared by the FBI concerning the petitioner's
whereabouts during the material period (Annexes "L",
"L-1" and "L-2" of the Supplemental Petition dated
August 14, 1995). In fact, not satisfied with the decision
of the DOJ Panel not to issue subpoena duces tecum to
Atty. Arturo L. Mercader, Jr., petitioner Webb filed a
"Petition for Injunction, Certiorari, Prohibition and
Mandamus" with the Regional Trial Court, Branch 63 of
Makati in order to compel said Atty. Mercader, Jr. to
produce the first sworn statement of Alfaro for
submission to the DOJ Panel. (p. 4, Petition) The said
court dismissed the petition after Mercader produced
and submitted to the DOJ Panel the first sworn
statement of Alfaro, without ruling on the admissibility
and credence of the two (2) conflicting and inconsistent
sworn statements of the principal witness, Alfaro.
(Attached hereto is a copy of the order of Judge Ruben
A. Mendiola, RTC-Makati, Branch 63 dated July 28,
1995) marked as Annex "F."
It must also be pointed out that despite the declaration
by the DOJ Panel that the preliminary investigation was
to be terminated after the hearing held on July 14,
1995, the panel continued to conduct further
proceedings, e.g. comparison of the photo-copies of
the submitted documents with the originals on July 17,
1995. (p. 7, Petition) The panel even entertained the
"Response" submitted by accused Miguel Rodriguez on
July 18, 1995. (p. 17 Resolution) In addition to these,
the panel even announced that any party may submit
additional evidence before the resolution of the case.
(p. 8, Petition) From the time the panel declared the
termination of the preliminary investigation on July 14,
1995, twenty-seven (27) days elapsed before the
resolution was promulgated, and the information
eventually filed in the Regional Trial Court of Parañaque
on August 10, 1995. This notwithstanding the directive
of Section 3(f) Rule 112 of the Revised Rules of Court
that the investigating officer shall resolve the
case within ten (10) days from the termination of the
preliminary investigation. The DOJ Panel precisely
allowed the parties to adduce more evidence in their
behalf and for the panel to study the evidence
submitted more fully. This directly disputes the
allegation of the petitioners that the resolution was
done with indecent haste in violation of the rights of
the petitioners. During the period of twenty-seven (27)
days, the petitioners were free to adduce and present
additional evidence before the DOJ Panel.
Verily, petitioners cannot now assert that they were
denied due process during the conduct of the
preliminary investigation simply because the DOJ Panel
promulgated the adverse resolution and filed the
Information in court against them.
Petitioners cannot also assail as premature the filing of the
Information in court against them for rape with homicide on
the ground that they still have the right to appeal the
adverse resolution of the DOJ Panel to the Secretary of
Justice. The filing of said Information is in accord with
Department of Justice Order No. 223, series of 1993, dated
June 25, 1993. We quote its pertinent sections, viz.:
Sec. 4. Non-Appealable Cases; Exceptions. — No appeal
may be taken from a resolution of the Chief State
Prosecutor/Regional State Prosecutor/Provincial or City
Prosecutor finding probable cause except upon showing
of manifest error or grave abuse of
discretion. Notwithstanding the showing of manifest
error or grave abuse of discretion, no appeal shall be
entertained where the appellant had already been
arraigned. If the appellant is arraigned during the
pendency of the appeal, said appeal shall be
dismissed motu propio by the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution
finding probable cause, however, shall not hold the
filing of the information in court.
Sec. 2. When to appeal. — The appeal must be filed
within a period of fifteen (15) days from receipt of the
questioned resolution by the party or his counsel. The
period shall be interrupted only by the filing of a
motion for reconsideration within ten (10) days from
receipt of the resolution and shall continue to run from
the time the resolution denying the motion shall have
been received by the movant or his counsel. (Emphasis
supplied)
Without doubt then, the said DOJ Order No. 223 allows the
filing of an Information in court after the consummation of
the preliminary investigation even if the accused can still
exercise the right to seek a review of the prosecutor's
recommendation with the Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro
in the Information considering her alleged conspiratorial
participation in the crime of rape with homicide. The non-
inclusion of Alfaro is anchored on Republic Act
No. 6981, entitled "An Act Providing For A Witness
Protection, Security And Benefit Program And For Other
Purposes" enacted on April 24, 1991. Alfaro qualified under
its Section 10, which provides:
 xxx xxx xxx
Sec. 10. State Witness. — Any person who has
participated in the commission of a crime and desires
to a witness for the State, can apply and, if qualified as
determined in this Act and by the Department, shall be
admitted into the Program whenever the following
circumstances are present:
(a) the offense in which his testimony will be used is a
grave felony as defined under the R.P.C. or its
equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the
proper prosecution of the offense committed;
(d) his testimony can be substantially corroborated on
its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime
involving moral turpitude.
An accused discharged from an information or criminal
complaint by the court in order that he may be a State
Witness pursuant to Sections 9 and 10 of Rule 119 of
the Revised Rules of Court may upon his petition be
admitted to the Program if he complies with the other
requirements of this Act. Nothing in this Act shall
prevent the discharge of an accused so that he can be
used as a Witness under Rule 119 of the Revised Rules
of Court.
Upon qualification of Alfaro to the program, Section 12 of
the said law mandates her non-inclusion in the criminal
Complaint or Information, thus:
xxx xxx xxx
Sec. 12. Effect of Admission of a State Witness into the
Program. — The certification of admission into the
Program by the Department shall be given full faith and
credit by the provincial or city prosecutor who is
required NOT TO INCLUDE THE WITNESS IN THE
CRIMINAL COMPLAINT OR INFORMATION and if
included therein, to petition the court for his discharge
in order that he can be utilized as a State Witness. The
court shall order the discharge and exclusion of the said
accused from the information.
Admission into the Program shall entitle such State
Witness to immunity from criminal prosecution for the
offense or offenses in which his testimony will be given
or used and all the rights and benefits provided under
Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb.
It is urged that they constitute ". . . an intrusion into judicial
prerogative for it is only the court which has the power under
the Rules on Criminal Procedure to discharge an accused as a
state witness." The argument is based on Section 9, Rule
11938which gives the court the prerogative to approve the
discharge of an accused to be a state witness. Petitioner's
argument lacks appeal for it lies on the faulty assumption that
the decision whom to prosecute is a judicial function, the sole
prerogative of courts and beyond executive and legislative
interference. In truth, the prosecution of crimes appertains to
the executive department of government whose principal power
and responsibility is to see that our laws are faithfully executed.
A necessary component of this power to execute our laws is the
right to prosecute their violators. The right to prosecute vests
the prosecutor with a wide range of discretion — the discretion
of whether, what and whom to charge, the exercise of which
depends on a smorgasbord of factors which are best appreciated
by prosecutors. We thus hold that it is not constitutionally
impermissible for Congress to enact R.A. No. 6981 vesting in the
Department of Justice the power to determine who can qualify
as a witness in the program and who shall be granted immunity
from prosecution.39Section 9 of Rule 119 does not support the
proposition that the power to choose who shall be a state
witness is an inherent judicial prerogative. Under this provision,
the court, is given the power to discharge a state witness only
because it has already acquired jurisdiction over the crime and
the accused. The discharge of an accused is part of the exercise
of jurisdiction but is not a recognition of an inherent judicial
function. Moreover, the Rules of Court have never been
interpreted to be beyond change by legislation designed to
improve the administration of our justice system. R.A. No. 6981
is one of the much sought penal reform laws to help government
in its uphill fight against crime, one certain cause of which is the
reticence of witnesses to testify. The rationale for the law is well
put by the Department of Justice, viz.: "Witnesses, for fear of
reprisal and economic dislocation, usually refuse to appear and
testify in the investigation/prosecution of criminal
complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for insufficiency and/or
lack of evidence. For a more effective administration of criminal
justice, there was a necessity to pass a law protecting witnesses
and granting them certain rights and benefits to ensure their
appearance in investigative bodies/courts."40 Petitioner Webb's
challenge to the validity of R.A. No. 6981 cannot therefore
succeed.
Further, petitioners charge the NBI with violating their right to
discovery proceedings during their preliminary investigation by
suppressing the April 28, 1995 original copy of the sworn
statement of Alfaro and the FBI Report. The argument is novel in
this jurisdiction and as it urges an expansive reading of the rights
of persons under preliminary investigation it deserves serious
consideration. To start with, our Rules on Criminal Procedure do
not expressly provide for discovery proceedings during the
preliminary investigation stage of a criminal
proceeding.41 Sections 10 and 11 of Rule 117 do provide an
accused the right to move for a bill of particulars and for
production or inspection of material evidence in possession of
the prosecution.42 But these provisions apply after the filing of
the Complaint or Information in court and the rights are
accorded to the accused to assist them to make an intelligent
plea at arraignment and to prepare for trial.43
This failure to provide discovery procedure during preliminary
investigation does not, however, negate its use by a person
under investigation when indispensable to protect his
constitutional right to life, liberty and property. Preliminary
investigation is not too early a stage to guard against any
significant erosion of the constitutional right to due process of a
potential accused. As aforediscussed, the object of a preliminary
investigation is to determine the probability that the suspect
committed a crime. We hold that the finding of a probable cause
by itself subjects the suspect's life, liberty and property to real
risk of loss or diminution. In the case at bar, the risk to the liberty
of petitioners cannot be understated for they are charged with
the crime of rape with homicide, a non-bailable offense when
the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure
inquisitorial system of preliminary investigation. Instead, Rule
112 installed a quasi-judicial type of preliminary investigation
conducted by one whose high duty is to be fair and
impartial.44 As this Court emphasized in Rolito Go vs. Court of
Appeals,45 "the right to have a preliminary investigation
conducted before being bound over for trial for a criminal
offense, and hence formally at risk of incarceration or some
other penalty, is not a mere formal or technical right; it is a
substantive right." A preliminary investigation should therefore
be scrupulously conducted so that the constitutional right to
liberty of a potential accused can be protected from any material
damage. We uphold the legal basis of the right of petitioners to
demand from their prosecutor, the NBI, the original copy of the
April 28, 1995 sworn statement of Alfaro and the FBI Report
during their preliminary investigation considering their
exculpatory character, and hence, unquestionable materiality to
the issue of their probable guilt. The right is rooted on the
constitutional protection of due process which we rule to be
operational even during the preliminary investigation of a
potential accused. It is also implicit in section (3) (a) of Rule 112
which requires during the preliminary investigation the filing of a
sworn complaint, which shall ". . . state the known address of the
respondent and be accompanied by affidavits of the complainant
and his witnesses as well as other supporting documents . . ."
In laying down this rule, the Court is not without enlightened
precedents from other jurisdictions. In the 1963 watershed case
of Brady v. Maryland 46 the United States Supreme Court held
that "suppression of evidence favorable to an accused upon
request violates due process where the evidence is material to
guilt or punishment, irrespective of the good faith or bad faith of
the prosecution." Its progeny is the 1935 case of Mooney
v. Holohan 47 which laid down the proposition that a
prosecutor's intentional use of perjured testimony to procure
conviction violates due process. Thus, evolved jurisprudence
firming up the prosecutor's duty to disclose to the defense
exculpatory evidence in its possession.48 The rationale is well put
by Justice Brennan in Brady49 — "society wins not only when the
guilty are convicted but when criminal trials are fair." Indeed,
prosecutors should not treat litigation like a game of poker
where surprises can be sprung and where gain by guile is not
punished.
But given the right of petitioners to compel the NBI to disclose
exculpatory evidence in their favor, we are not prepared to rule
that the initial non-production of the original sworn statement of
Alfaro dated April 28, 1995 could have resulted in the reasonable
likelihood that the DOJ Panel would not have found probable
cause. To be sure, the NBI, on July 4, 1995, upon request of
petitioners, submitted a photocopy of Alfaro's April 28, 1995
sworn statement. It explained it cannot produce the original as it
had been lost. Fortunately, petitioners, on July 28, 1995, were
able to obtain a copy of the original from Atty. Arturo Mercader
in the course of the proceedings in Civil Case No. 951099.50 As
petitioners admit, the DOJ Panel accepted the original of Alfaro's
April 28, 1995 sworn statement as a part of their
evidence.51 Petitioners thus had the fair chance to explain to the
DOJ Panel then still conducting their preliminary investigation
the exculpatory aspects of this sworn statement. Unfortunately
for petitioners, the DOJ Panel still found probable cause to
charge them despite the alleged material discrepancies between
the first and second sworn statements of Alfaro. For reasons we
have expounded, this finding of probable cause cannot be struck
down as done with grave abuse of discretion.52On the other
hand, the FBI Report while corroborative of the alibi of petitioner
Webb cannot by itself reverse the probable cause finding of the
DOJ Panel in light of the totality of evidence presented by the
NBI.
Finally, we come to the argument of petitioner that the DOJ
Panel lost its impartiality due to the prejudicial publicity waged
in the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their
right to due process while undergoing preliminary investigation.
We find no procedural impediment to its early invocation
considering the substantial risk to their liberty while undergoing
a preliminary investigation.
In floating this issue, petitioners touch on some of the most
problematic areas in constitutional law where the conflicting
demands of freedom of speech and of the press, the public's
right to information, and an accused's right to a fair and
impartial trial collide and compete for prioritization. The process
of pinpointing where the balance should be struck has divided
men of learning as the balance keeps moving either on the side
of liberty or on the side of order as the tumult of the time and
the welfare of the people dictate. The dance of balance is a
difficult act to follow.
In democratic settings, media coverage of trials of sensational
cases cannot be avoided and oftentimes, its excessiveness has
been aggravated by kinetic developments in the
telecommunications industry. For sure, few cases can match the
high volume and high velocity of publicity that attended the
preliminary investigation of the case at bar. Our daily diet of
facts and fiction about the case continues unabated even today.
Commentators still bombard the public with views not too many
of which are sober and sublime. Indeed, even the principal
actors in the case — the NBI, the respondents, their lawyers and
their sympathizers — have participated in this media blitz. The
possibility of media abuses and their threat to a fair trial
notwithstanding, criminal trials cannot be completely closed to
the press and the public. In the seminal case of Richmond
Newspapers, Inc. v. Virginia,53 it was wisely held:
xxx xxx xxx
(a) The historical evidence of the evolution of the
criminal trial in Anglo-American justice demonstrates
conclusively that at the time this Nation's organic laws
were adopted, criminal trials both here and in England
had long been presumptively open, thus giving
assurance that the proceedings were conducted fairly
to all concerned and discouraging perjury, the
misconduct of participants, or decisions based on
secret bias or partiality. In addition, the significant
community therapeutic value of public trials was
recognized: when a shocking crime occurs, a
community reaction of outrage and public protest often
follows, and thereafter the open processes of justice
serve an important prophylactic purpose, providing an
outlet for community concern, hostility, and emotion.
To work effectively, it is important that society's
criminal process "satisfy the appearance of justice,"
Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S
Ct 11, which can best be provided by allowing people to
observe such process. From this unbroken,
uncontradicted history, supported by reasons as valid
today as in centuries past, it must be concluded that a
presumption of openness inheres in the very nature of
a criminal trial under this Nation's system of
justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L
Ed 2d 989, 80 S Ct 1038.
(b) The freedoms of speech, press, and assembly,
expressly guaranteed by the First Amendment, share a
common core purpose of assuring freedom of
communication on matters relating to the functioning
of government. In guaranteeing freedoms such as those
of speech and press, the First Amendment can be read
as protecting the right of everyone to attend trials so as
to give meaning to those explicit guarantees; the First
Amendment right to receive information and ideas
means, in the context of trials, that the guarantees of
speech and press, standing alone, prohibit government
from summarily closing courtroom doors which had
long been open to the public at the time the First
Amendment was adopted. Moreover, the right of
assembly is also relevant, having been regarded not
only as an independent right but also as a catalyst to
augment the free exercise of the other First
Amendment rights with which it was deliberately linked
by
the draftsmen. A trial courtroom is a public place where
the people generally — and representatives of the
media — have a right to be present, and where their
presence historically has been thought to enhance the
integrity and quality of what takes place.
(c) Even though the Constitution contains no provision
which by its terms guarantees to the public the right to
attend criminal trials, various fundamental rights, not
expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights.
The right to attend criminal trials is implicit in the
guarantees of the First Amendment; without the
freedom to attend such trials, which people have
exercised for centuries, important aspects of freedom
of speech and of the press could be eviscerated.
Be that as it may, we recognize that pervasive and prejudicial
publicity under certain circumstances can deprive an accused of
his due process right to fair trial. Thus, in Martelino, et
al. vs. Alejandro, et al.,54 we held that to warrant a finding of
prejudicial publicity there must be allegation and proof that the
judges have been unduly influenced, not simply that they might
be, by the barrage of publicity. In the case at bar, we find
nothing in the records that will prove that the tone and content,
of the publicity that attended the investigation of petitioners
fatally infected the fairness and impartiality of the DOJ Panel.
Petitioners cannot just rely on the subliminal effects of publicity
on the sense of fairness of the DOJ Panel, for these are basically
unbeknown and beyond knowing. To be sure, the DOJ Panel is
composed of an Assistant Chief State Prosecutor and Senior
State Prosecutors. Their long experience in criminal investigation
is a factor to consider in determining whether they can easily be
blinded by the klieg lights of publicity. Indeed, their 26-page
Resolution carries no indubitable indicia of bias for it does not
appear that they considered any extra-record evidence except
evidence properly adduced by the parties. The length of time the
investigation was conducted despite its summary nature and the
generosity with which they accommodated the discovery
motions of petitioners speak well of their fairness. At no
instance, we note, did petitioners seek the disqualification of any
member of the DOJ Panel on the ground of bias resulting from
their bombardment of prejudicial publicity.
It all remains to state that the Vizconde case will move to a more
critical stage as petitioners will now have to undergo trial on the
merits. We stress that probable cause is not synonymous with
guilt and while the light of publicity may be a good disinfectant
of unfairness, too much of its heat can bring to flame an
accused's right to fair trial. Without imposing on the trial judge
the difficult task of supervising every specie of speech relating to
the case at bar, it behooves her to be reminded of the duty of a
trial judge in high profile criminal cases to control publicity
prejudicial to the fair administration of justice.55 The Court
reminds judges that our ability to dispense impartial justice is an
issue in every trial and in every criminal prosecution, the
judiciary always stands as a silent accused. More than convicting
the guilty and acquitting the innocent, the business of the
judiciary is to assure fulfillment of the promise that justice shall
be done and is done — and that is the only way for the judiciary
to get an acquittal from the bar of public opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of
showing of grave abuse of discretion on the part of the
respondents. Costs against petitioners.
SO ORDERED.
Regalado, J., concurs.
Mendoza, J., concurs in the result.
Narvasa, C.J., is on leave.
Separate Opinion
FRANCISCO, J., concurring:
The thrust of petitioners' arguments involve the validity and
exercise of the prosecutory powers of the State. Maintaining
their innocence, petitioners assert that the filing of an
information and the issuance of warrants of arrest against them
were without probable cause. Petitioners, in my considered
view, failed to make a case to warrant the Court's interference.
Preliminary investigation, unlike trial, is summary in nature, the
purpose of which is merely to determine whether a crime has
been committed and whether there is probable cause to believe
that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA
86, 92 [1991]). It is not intended to find guilt beyond reasonable
doubt. Courts should give deference, in the absence of a clear
showing of arbitrariness, as in this case, to the finding and
determination of probable cause by prosecutors in preliminary
investigations. If not, the functions of the courts will be unduly
hampered by innumerable petitions compelling the review of the
exercise of discretion on the part of fiscals or prosecuting
attorneys if each time they decide to file an information in court
their finding can be immediately brushed aside at the instance of
those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730
[1993]). The Court, therefore, must look askance at
unmeritorious moves that could give a dent in the efficient and
effective administration of justice.
Petitioners characterize the evidence against them to be
inherently weak and uncorroborated vis-a-vis their defenses. The
weight or sufficiency of evidence, to my mind, is best assayed in
the trial proper. In the search for truth, a trial has distinct merits
over a preliminary investigation. We have had occasion to stress
that trial is to be preferred to ferret out the truth (Abugotal v.
Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a
party's defense or accusation as well as the admissibility or
inadmissibility of testimonies and evidence are better ventilated
during the trial stage than in the preliminary investigation level.
The ineluctable media attention notwithstanding, truth as to
their innocence or guilt is still best determined at the trial.
With respect to petitioners' contention that public respondent
judge failed to personally examine and determine the existence
of probable cause for the issuance of a warrant, suffice it to say
that the judge does not have to personally examine the
complainant and his witnesses in order to issue a warrant of
arrest as he can rely on the certification of the prosecutor/s
(Circular No. 12 — Guidelines on Issuance of Warrants of Arrests
[June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]).
There is ample evidence and sufficient basis on record that
support the trial court's issuance of the warrant as petitioners
themselves do not contend that the prosecutors' certification
was unaccompanied by the records of the preliminary
investigation to take their case outside the ambit of the rule.
Moreover, contrary to what the petitioners imply, the Court may
not determine how cursory or exhaustive the judge's
examination of the certification, report and findings of the
preliminary investigation and its annexes should be as this
depends not only upon the sound exercise of the judge's
discretion in personally determining the existence of probable
cause, but also from the circumstances of each case (Lim, Sr. v.
Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge,
being a public officer, enjoys the presumption of regularity in the
performance of his duties (Rule 131, Sec. 3 [m], Rules of Court).
The issuance of the warrants of arrest against petitioners thus
can not be said to be whimsical or arbitrary.
Lastly, the law in this jurisdiction is lopsided in favor of the
accused. The 1987 Constitution and the Rules of Court
enumerate an array of rights upon which an accused can seek
protection and solace. To mention a few: he has the right to be
presumed innocent until the contrary is proved, the right against
self-incrimination, the right to remain silent, to confront and
cross-examine the witnesses against him, to have a speedy,
impartial and public trial, to be heard by himself and counsel, to
have competent and independent counsel preferably of his own
choice. These rights are afforded to the accused and not to the
complainant. Therefore, petitioners need not be distressed if
they henceforth go to trial.
I vote to dismiss the petitions.
Mendoza, J., concurs.
Separate Opinion
FRANCISCO, J., concurring:
The thrust of petitioners' arguments involve the validity and
exercise of the prosecutory powers of the State. Maintaining
their innocence, petitioners assert that the filing of an
information and the issuance of warrants of arrest against them
were without probable cause. Petitioners, in my considered
view, failed to make a case to warrant the Court's interference.
Preliminary investigation, unlike trial, is summary in nature, the
purpose of which is merely to determine whether a crime has
been committed and whether there is probable cause to believe
that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA
86, 92 [1991]). It is not intended to find guilt beyond reasonable
doubt. Courts should give deference, in the absence of a clear
showing of arbitrariness, as in this case, to the finding and
determination of probable cause by prosecutors in preliminary
investigations. If not, the functions of the courts will be unduly
hampered by innumerable petitions compelling the review of the
exercise of discretion on the part of fiscals or prosecuting
attorneys if each time they decide to file an information in court
their finding can be immediately brushed aside at the instance of
those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730
[1993]). The Court, therefore, must look askance at
unmeritorious moves that could give a dent in the efficient and
effective administration of justice.
Petitioners characterize the evidence against them to be
inherently weak and uncorroborated vis-a-vis their defenses. The
weight or sufficiency of evidence, to my mind, is best assayed in
the trial proper. In the search for truth, a trial has distinct merits
over a preliminary investigation. We have had occasion to stress
that trial is to be preferred to ferret out the truth (Abugotal v.
Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a
party's defense or accusation as well as the admissibility or
inadmissibility of testimonies and evidence are better ventilated
during the trial stage than in the preliminary investigation level.
The ineluctable media attention notwithstanding, truth as to
their innocence or guilt is still best determined at the trial.

With respect to petitioners' contention that public respondent

judge failed to personally examine and determine the existence
of probable cause for the issuance of a warrant, suffice it to say
that the judge does not have to personally examine the
complainant and his witnesses in order to issue a warrant of
arrest as he can rely on the certification of the prosecutor/s
(Circular No. 12 — Guidelines on Issuance of Warrants of Arrests
[June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]).
There is ample evidence and sufficient basis on record that
support the trial court's issuance of the warrant as petitioners
themselves do not contend that the prosecutors' certification
was unaccompanied by the records of the preliminary
investigation to take their case outside the ambit of the rule.
Moreover, contrary to what the petitioners imply, the Court may
not determine how cursory or exhaustive the judge's
examination of the certification, report and findings of the
preliminary investigation and its annexes should be as this
depends not only upon the sound exercise of the judge's
discretion in personally determining the existence of probable
cause, but also from the circumstances of each case (Lim, Sr. v.
Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge,
being a public officer, enjoys the presumption of regularity in the
performance of his duties (Rule 131, Sec. 3 [m], Rules of Court).
The issuance of the warrants of arrest against petitioners thus
can not be said to be whimsical or arbitrary.

Lastly, the law in this jurisdiction is lopsided in favor of the

accused. The 1987 Constitution and the Rules of Court
enumerate an array of rights upon which an accused can seek
protection and solace. To mention a few: he has the right to be
presumed innocent until the contrary is proved, the right against
self-incrimination, the right to remain silent, to confront and
cross-examine the witnesses against him, to have a speedy,
impartial and public trial, to be heard by himself and counsel, to
have competent and independent counsel preferably of his own
choice. These rights are afforded to the accused and not to the
complainant. Therefore, petitioners need not be distressed if
they henceforth go to trial.

I vote to dismiss the petitions.

Mendoza, J., concurs.